Citation NR: 9718049
Decision Date: 05/27/97 Archive Date: 06/03/97
DOCKET NO. 95-33 128A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased disability evaluation for
transitional lumbar vertebrae with pseudoarthrodesis and
degenerative disc disease, status post laminectomy, currently
rated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Yates, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1957 to August
1977.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a July 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California. That rating decision granted an
increased rating of 20 percent for the veteran’s service-
connected back disorder, from January 1994. It also granted
a temporary convalescent rating of 100 percent from April 13,
1994 to May 31, 1994. In September 1995, pursuant to the
veteran’s change of residence, this case was transferred to
the RO in St. Petersburg, Florida.
REMAND
The appellant contends, in essence, that his service-
connected back disorder is more severely disabling than
currently evaluated and, therefore, warrants the assignment
of a higher rating. He argues that he has a limited range of
motion and complains of severe pain and discomfort.
The VA has a duty to assist the veteran once his claim is
found to be well grounded. 38 U.S.C.A. § 5107(a)(West 1991).
A well-grounded claim is one which is meritorious on its own
or capable of substantiation. It need not to be conclusive,
but only plausible. Murphy v. Derwinski, 1 Vet.App. 78
(1990). The veteran's claim for an increased rating in this
case is shown to be well grounded, but the duty to assist him
in its development have not yet been fulfilled. See
Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992) (where a
veteran asserted that his condition had worsened since the
last time his claim for an increased disability evaluation
for a service-connected disorder had been considered by VA,
he established a well-grounded claim for an increased
rating).
In DeLuca v. Brown, 8 Vet.App. 202 (1995), the United States
Court of Veterans Appeals (Court) held that 38 C.F.R.
§§ 4.40, 4.45 (1996) were not subsumed into the Diagnostic
Codes under which a veteran’s disabilities are rated.
Therefore, the Board has to consider the “functional loss” of
a musculoskeletal disability under 38 C.F.R. § 4.40 (1996),
separate from any consideration of the veteran’s disability
under the Diagnostic Codes. DeLuca, 8 Vet.App. 202, 206
(1996). Functional loss may occur as a result of weakness or
pain on motion of the affected body part. 38 C.F.R. § 4.40
(1996). The factors involved in evaluating, and rating
disabilities of the joints include: weakness; fatigability;
incoordination; restricted or excess movement of the joint;
or, pain on movement. 38 C.F.R. § 4.45 (1996). These
factors do not specifically relate to muscle or nerve
injuries independently of each other, but rather, refer to
overall factors which must be considered when rating the
veteran’s joint injury. DeLuca, 8 Vet.App. 202, 206-07
(1995).
A review of the medical evidence of record in this matter
reveals that in April 1994 the veteran underwent a
decompressive lumbar laminectomy, L3 to L5, and inspection
and palpation of discs L3-4 and L4-5. Subsequent
neurosurgical examinations, performed by Craig N. Pfeiffer,
M.D. and dated September 1994 and June 1995, noted his
complaints of mechanical low back pain and his limited range
of motion for back flexion and extension. These
examinations, however, did not address the effect of his pain
on his limitation of motion. Nor did they provide a range of
motion for his back’s lateral movement or right and left
rotation. In light of the DeLuca decision, the medical
evidence of record is deemed to be inadequate for rating
purposes because it does not fully account for pain in
describing the limitation of function of the veteran’s back.
To ensure that the Department of Veterans Affairs (VA) has
met its duty to assist the claimant in developing the facts
pertinent to the claim, the case is REMANDED to the regional
office (RO) for the following development:
1. The RO should obtain the names and
addresses of all medical care providers
who have treated the veteran for his
service-connected transitional lumbar
vertebrae with pseudoarthrodesis and
degenerative disc disease, status post
laminectomy, during the pendency of this
appeal. The RO should obtain any records
of treatment not already in the claims
file and associate them with the claims
file.
2. The RO should schedule the veteran for
the type of VA examination or examinations
it deems necessary to provide the complete
medical information necessary to
adjudicate the claim for an increased
disability rating for the service-
connected transitional lumbar vertebrae
with pseudoarthrodesis, degenerative disc
disease status post laminectomy, in the
wake of the Court’s decision DeLuca v.
Brown. The claims folder should be made
available to the examiner for review
before the examination. All necessary
tests should be conducted, including
x-rays, myelograms, MRI, and CT scans
which the examiner deems necessary. The
examiner should review the results of any
testing prior to completion of the report.
The report of examination should be
comprehensive and include a detailed
account of all manifestations of his back
and disc pathology found to be present.
The examiner should provide a complete
rationale for all conclusions reached.
a. With respect to the functioning of
the veteran’s spine, attention should
be given to the presence or absence of
pain, any limitation of motion,
swelling, muscle spasm, ankylosis,
subluxation, lateral instability,
dislocation, locking of the joint,
loose motion, crepitus, deformity or
impairment. The examiner should
provide a complete and detailed
discussion with respect to any
weakness; fatigability; incoordination;
restricted movement; or pain on motion.
The examiner should provide a
description of the effect, if any, of
the veteran’s pain on the function and
movement of spine. See DeLuca v.
Brown, 8 Vet.App. 202 (1995); see 38
C.F.R. § 4.40 (1996) (functional loss
may be due to pain, supported by
adequate pathology). In particular, it
should be ascertained whether there is
additional motion lost due to pain on
use or during exacerbation of the
disability.
b. The examiner is requested to
comment on the degree of limitation of
normal functioning caused by pain.
Range of motion testing should be
conducted. The examiner should specify
the results in actual numbers and
degrees for forward flexion, backward
extension, lateral flexion and right
and left rotation.
3. The RO should review the claims folder
and ensure that all of the foregoing
development actions have been conducted
and completed in full. If any development
is incomplete, appropriate corrective
action is to be implemented. Specific
attention is directed to the examination
report. If the requested examination does
not include fully detailed descriptions of
pathology and all test reports, special
studies or adequate responses to the
specific opinions requested, the report
must be returned for corrective action.
38 C.F.R. § 4.2 (1996) ("if the
[examination] report does not contain
sufficient detail, it is incumbent upon
the rating board to return the report as
inadequate for evaluation purposes.").
Green v. Derwinski, 1 Vet.App. 121, 124
(1991); Abernathy v. Principi, 3 Vet.App.
461, 464 (1992); and Ardison v. Brown, 6
Vet.App. 405, 407 (1994).
4. The RO should readjudicate the claim
for an increased disability rating for
the service-connected transitional lumbar
vertebrae with pseudoarthrodesis and
degenerative disc disease, status post
laminectomy, in accordance with the
Court’s holding in DeLuca v. Brown, 8
Vet.App. 202, 206-07 (1995).
Following completion of these actions and, if the decision
remains unfavorable, the veteran and representative should be
provided with a Supplemental Statement of the Case and
afforded a reasonable period of time in which to respond.
Thereafter, in accordance with the current appellate
procedures, the case should be returned to the Board for
completion of appellate review.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
No action is required of the veteran until further notice is
issued.
JAMES W. ENGLE
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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